“Article 3 of the Hague Convention states that a removal or retention of a child is wrongful where:
a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
Article 12 of the Hague Convention requires the mandatory return of the child if the removal or retention is determined to be wrongful. Under s. 46(5) of the Act, an application may be made to a court in pursuance of such a return.
There are limited defences to the operation of Articles 3 and 12. For instance, where the habitual residence of the child has changed, a defence against an application for his or her mandatory return to the former habitual residence will be available. Further, Article 13(a) of the Hague Convention provides that the mandatory return of the child is not required where the person having the care of the child had consented to or subsequently acquiesced in the removal or retention of the child.”